Thoughts on The Passing of Antonin Scalia UPDATE

Both Emily and Frank have written obits about the sudden passing of Supreme Court Justice Antonin Scalia.

I would like to take a moment about his arrival on the Supreme Court as well as to talk about where we go from here.

It is worth remembering that when Scalia was confirmed by the Senate in 1986 the vote was 98-0. Republicans and Democrats united to vote to confirm him.

A year later, Democrats would filibuster Robert Bork. Let’s just say those days of unaminous consent are gone.

There is also a good chance the conservative majority on the Supreme Court has passed along with Scalia. Of course, Scalia’s presence on the court didn’t stop Obamacare from being upheld. But a new liberal justice on the court will be the deathblow of judicial restraint for a generation, if not longer.

Even if President Obama has only 11 months in office it is inconceivable to me that he wouldn’t nominate a successor. No doubt Mitch McConnell will do everything possible to prevent a confirmation vote from coming to pass. If McConnell doesn’t he can follow John Boehner out the door. Obama, in turn, will rail against what he views as Republican obstructionism and Hillary Clinton will follow his lead with the claim that the failure of the Senate to confirm Obama’s nomination will result in the end of Roe v. Wade. Meanwhile, Bernie Sanders will tell us that no Supreme Court justice of his would ever support Ciizens United. The Republican candidates will also have their say beginning at tonight’s debate in South Carolina. I wonder which Republican candidate will bring up Donald Trump’s desire to name his pro-abortion sister to the Supreme Court.

I realize there must be a time to mourn Justice Scalia. But for the age in which we live the mourning period will not be long. Things move fast. President Obama will not wait long and the presidential campaign only adds to the urgency with which he will act. Should President Obama nominate a successor and get around the Senate through a recess appointment (despite the SC’s previous ruling on Obama overstepping his bounds) there will be deep and lasting implications for our Republic well into this century and very little good will come of it.

UPDATE: President Obama just spoke about Scalia’s passing and said he will nominate his successor “in due time.” Obama also said he expected the Senate to fulfill its duties. And by fulfillment he means that they act as his rubber stamp.